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A/HRC/WGAD/2023/13

Opinion No. 13/2023 concerning Salah Hammouri (Israel)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2023-04-05 · en UN

Opinion; Subjects: ISRAEL, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.23-06735 (E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-sixth session, 27 March–5 April 2023

Opinion No. 13/2023 concerning Salah Hammouri (Israel)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work,1 on 20 January 2023, the Working Group

transmitted to the Government of Israel a communication concerning Salah Hammouri. The

Government has not replied to the communication. The State is a party to the International

Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

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General Assembly

Distr.: General

1 May 2023

Original: English

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Submissions

Communication from the source

4.

Salah Hammouri is a national of the State of Palestine and of France, born on 25 April

1985, who normally resides in Kafr ‘Aqab, East Jerusalem. He works as a human rights

lawyer and defender for a non-governmental organization. Mr. Hammouri has been detained

in the past by Israeli authorities:2 the Working Group on Arbitrary Detention considered that

the deprivation of liberty he suffered subsequent to his arrest on 23 August 2017 was arbitrary

due to its lack of a legal basis, because of violations of fair trial rights and on account of its

being considered discriminatory.3

5.

According to the information received, Mr. Hammouri resides in Kafr ‘Aqab, a

neighbourhood in occupied East Jerusalem. He is a lawyer and field researcher in a human

rights organization that works on issues regarding prisoners and their detention. Mr.

Hammouri’s arrest and deprivation of liberty were reportedly based on the Israeli authorities’

claim that he poses a threat to State security, based on secret evidence not disclosed to him

or his lawyer.

6.

The source reports that, on 7 March 2022, Israeli military forces broke into Mr.

Hammouri’s apartment between 4 a.m. and 5 a.m., pulled him from his bed, bound his hands

tightly with zip cuffs, ransacked his home and confiscated his three mobile phones and laptop.

Israeli military forces reportedly then placed Mr. Hammouri under arrest without a warrant

and transferred him to the Ofer military base and later to the Al-Mascobiyya interrogation

centre. Allegedly, no reasons were provided for his arrest at that time.

7.

On 9 March 2022, Mr. Hammouri appeared before a military court through

videoconference, after which the Israeli military judge approved the extension of his

detention for 48 hours. On 10 March 2022, an Israeli military commander in the West Bank

issued an administrative detention order against Mr. Hammouri, without charges or trial, for

three months, citing secret evidence. The source claims that, under section 285 of Military

Order No. 1651, a commander of the Israel Defense Forces is allowed to issue an

administrative detention order for an individual if the commander has reasonable grounds to

believe that the individual poses a threat to regional security.

8.

On 13 March 2022, Israeli authorities transferred Mr. Hammouri to Ofer military

prison. On 14 March 2022, a judge in the Ofer military court confirmed the detention order;

a process required by law, but which does not include a hearing or an opportunity for Mr.

Hammouri or his attorneys to present a defence.

9.

Reportedly, on 2 June 2022, a few days before his expected release, the Israeli military

commander renewed Mr. Hammouri’s administrative detention order for an additional three

months. The Ofer military court confirmed the renewal order on 9 June 2022. Mr.

Hammouri’s administrative detention under Israeli military orders was subject to indefinite

renewal. Mr. Hammouri joined a collective boycott of Israeli military court proceedings,

which he deemed fundamentally unjust. Civil society and non-governmental organizations

have reached a similar conclusion about the unfairness of these proceedings.

10.

The source notes that 600 Palestinian administrative detainees undertook a collective

boycott of Israeli military courts to protest the alleged systematic and arbitrary practice of

administrative detention. Mr. Hammouri joined the boycott, by refusing to participate in the

military proceedings related to his administrative detention and requesting his lawyer to do

the same. The source claims that Mr. Hammouri’s experiences with Israeli harassment and

administrative detention are unfortunately not unique for Palestinians living in the Occupied

2 The source claims that Mr. Hammouri has been repeatedly targeted for being a human rights defender.

He has previously spent time in prison for allegedly planning to kill a religious figure, which he has

consistently denied. Reportedly, he has been administratively detained and subject to travel bans. Most

recently, Israeli authorities allegedly revoked his residency permit due to his alleged “breach of

allegiance” to Israel.

3 See opinion No. 34/2018.

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Palestinian Territory. Palestinians allegedly face arrest, prosecution and imprisonment under

an Israeli military detention system that denies them fundamental rights.

11.

On 14 July 2022, Mr. Hammouri addressed the President of France in an open letter,

calling for immediate serious action against his continued persecution and harassment.

Reportedly, one week later, on 21 July 2022, his cell in Ofer prison was raided, searched and

ransacked by the Prison Service. On the same day, Mr. Hammouri was punitively reclassified

as a prisoner who allegedly poses a high degree of danger. This designation entails excessive

restrictions on a detainee, including the use of cuffs on his hands and feet every time he is

transferred or moves outside his cell.

12.

Following Mr. Hammouri’s punitive reclassification, he was transferred from Ofer

prison to Hadarim prison on 27 July 2022. Due to his new classification as a “high-security

danger”, he was cuffed during his five-hour transfer, with two metal cuffs on his hands, two

metal cuffs on his feet, and one long metal cuff that connected the cuffs on his hands with

the ones on his feet. The shackles were tight, which made movement very difficult and

limited. In addition, he was made to carry his belongings on his own while in this situation.

13.

According to the information received, on 4 September 2022, once again, only hours

before his expected release from administrative detention in Hadarim prison, the authorities

renewed the administrative detention of Mr. Hammouri for the second time for another three

months. Once more, neither he nor his lawyer was informed about the decision, leaving him

and his family in a state of continuous anxiety and psychological distress. Extension of the

administrative detention period severely increases the psychological suffering of detainees.

Once detainees begin to think that they will soon be released, the Israeli authorities often

renew the detention order without any charges.

14.

The source claims that, on 25 September 2022, 19 days after the renewal decision,

Mr. Hammouri – along with 29 other Palestinian administrative detainees – initiated a

collective hunger strike to protest their unlawful detention. As punishment for the strike, the

Prison Service placed Mr. Hammouri in solitary confinement in inhumane conditions. He

was reportedly detained in a filthy and pest-infested isolation cell of four square metres in

Hadarim prison, deprived of salt and without open air or light for 15 days. He was subject to

psychological pressure by prison officials as a form of torture and a coercive tool.

15.

According to the source, on 29 November 2022, the Minister of the Interior of Israel

reaffirmed the decision to revoke Mr. Hammouri’s permanent Jerusalem residency, alleging

that he represented a “security threat” to Israel, citing his active civic work and “secret

information”. Furthermore, in the decision, the Minister of the Interior noted that the

administrative detention order would expire on 4 December 2022 and ordered his forcible

deportation to take place on 1 December 2022, following a hearing scheduled for the same

day. The decision of the Minister of the Interior was approved by the Minister of Justice,

following recommendations from the Israel Security Agency. The residency revocation order

was initially made on 17 October 2021 and subsequently appealed by legal counsel in a public

hearing on 14 September 2022.

16.

Mr. Hammouri’s lawyer was not informed of the time or location of the deportation

hearing on 1 December 2022 and was denied permission to provide him with legal

representation. On the day of the hearing, Mr. Hammouri was transferred early in the morning

from Hadarim prison to Givon, where he refused to stand without the presence of his lawyer

and further refused his forcible deportation. Due to the holding of the hearing without legal

counsel, another deportation hearing was scheduled on 6 December 2011, following requests

from Mr. Hammouri’s lawyer.

17.

On 6 December 2022, Mr. Hammouri and his legal representatives attended two

hearing sessions in Givon prison, regarding the deportation and detention order prior to

deportation. In both hearing sessions, Mr. Hammouri was transferred from Hadarim prison

using the “Bosta” transfer vehicle under extremely harsh conditions, with two metal cuffs on

his hands and feet and one chain connecting both. He remained cuffed throughout the

hearings.

18.

According to the information received, on the morning of 18 December 2022, Israeli

authorities enacted the final step of his residency revocation and forcibly deported Mr.

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Hammouri, exiling him to France; after nine months of confinement under arbitrary

administrative detention without charges or a trial. Although Israeli authorities had alerted

the Ministry of Foreign Affairs of France about the scheduled deportation date days before,

Mr. Hammouri himself and his lawyer were not notified of the event until it began. He was

directly transferred from pre-deportation detention in Hadarim prison to the airport, shackled

by his hands and feet and accompanied by three intelligence agents. He was then boarded

onto an El Al flight to Charles de Gaulle airport. Throughout the journey, Mr. Hammouri

remained shackled and monitored by the Israeli agents until his arrival in France. Prior to Mr.

Hammouri’s deportation, human rights groups signed a joint appeal calling on commercial

airlines to refuse to assist Israeli authorities with the illegal forced deportation, in accordance

with the relevant duties under international law.

19.

The source claims that, during the proceedings, Mr. Hammouri exhausted every

remedy available in the national political and legal system. His forcible deportation is the

final act in the revocation of his residency and forced exile from his homeland, which

allegedly exemplify the apartheid nature of the regime. The source claims that the deportation

act constitutes a war crime of forcible deportation of a protected civilian from the Occupied

Palestinian Territory, as defined in article 49 of the Geneva Convention relative to the

Protection of Civilian Persons in Time of War (Fourth Geneva Convention). It stands as an

escalation of the systematic practice of demographic engineering and ethnic cleansing of

Palestinians from occupied East Jerusalem.

20.

According to the information received, administrative detention has reportedly gone

hand in hand with the Israeli military occupation of the West Bank. The Israeli military

commander of the West Bank is authorized to issue military orders binding on the occupants

of the West Bank. The source claims that, under this power, Israel has implemented its

practice of administrative detention: detention based on an alleged security threat in the future

rather than an allegation of past wrongdoing. The use of administrative detention by Israel

over the past 55 years has allegedly subjected thousands of Palestinians to arbitrary detention,

in violation of international law. It was reported that, by 4 April 2022, more than 500

Palestinians were held in Israeli prisons under administrative detention orders, with no

certainty of when or if they would ever be released.

21.

The source states that international humanitarian law requires Israel to maintain public

order and safety and allows it, as the occupying Power, to detain persons under its control for

imperative reasons of security. International humanitarian law requires Israel to ensure the

protection, security and welfare of those living under occupation and guarantee that they can

live as normal a life as possible. While it has the power to detain individuals administratively,

this measure is among the most severe measures permitted against a civilian population under

occupation and should not be used as a substitute for criminal charges in cases in which the

evidence is insufficient to accuse an individual of a crime. To use administrative detention in

such a manner undermines the rights of criminal suspects. However, it is alleged that Israel

has previously used administrative detention to lock up Palestinians as a punitive measure

and in cases in which it lacks enough evidence to prosecute.4

22.

International human rights law provides limits on the use of detention without trial

and requires, for example, an independent judiciary and a fair trial.5 The source claims that

Israel routinely violates this international human rights obligation in its practice of

administrative detention in the occupied West Bank. Its military courts lack fundamental

impartiality and the prolific use of secret evidence – which neither the detainee nor their

lawyer may access – further impinges on detainees’ rights because it prevents them from

effectively mounting a defence.

23.

According to the source, this discriminatory use of administrative detention –

employed against Palestinians – along with other policies and practices, have led

international law scholars and non-governmental organizations to conclude that Israel is

violating the prohibition of apartheid and that its laws and practices amount to such an

international crime.

4 See opinion No. 86/2017.

5 International Covenant on Civil and Political Rights, art. 14.

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Category I

24.

Detention is arbitrary when it is clearly impossible to invoke any legal basis justifying

the deprivation of liberty, as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law. Failure to present a detainee with a warrant, press

charges or carry out a judicial review all support a finding of arbitrariness under category I.

25.

The source claims that, when Israeli forces stormed Mr. Hammouri’s house in the

middle of the night and forced him from his bed, zip-tied his wrists and forced him to kneel

facing the wall, they did not inform him of the reason for his arrest or present him with a

warrant. They confiscated his three mobile phones and laptop, for which they did not present

a warrant, and forced him into a military jeep, transporting him between multiple

interrogation and detention facilities, and at no point did the authorities present him with a

warrant for his arrest. When the Israeli military commander issued an administrative

detention order against him three days later, this was done without charge or trial, based on

secret information.

26.

Article 14 of the International Covenant on Civil and Political Rights requires that

detainees be informed promptly and in detail in a language that they understand of the nature

and cause of the charges against them; this applies to any deprivation of liberty. A failure to

do so is also a violation of articles 3 and 9 of the Universal Declaration of Human Rights and

article 9 (1) of the Covenant. These violations allegedly render Mr. Hammouri’s detention

arbitrary under category I.

Category II

27.

According to the allegations from the source, in the absence of any evidence that Mr.

Hammouri poses a genuine threat to the security of the region, his arrest and detention should

be seen as based upon his exercise of his freedoms of opinion, expression6 and, as a lawyer,

association.7 The detention of Mr. Hammouri is therefore claimed to be arbitrary under

category II.

28.

The source states that the Human Rights Committee has singled out harassment,

intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment

for reasons of the opinions that individuals may hold, as a violation of article 19 of the

Covenant.8 Mr. Hammouri has been the subject of continual harassment, including through

a recent attack by a spyware program, due to his advocacy calling for the end of the

occupation of the West Bank by Israel. Harassment and repeated arrest and detention of Mr.

Hammouri over the past two decades of his life, culminating in his recent arrest and detention,

particularly in light of his work as a lawyer, field researcher and human rights defender,

should be seen as being caused by the exercise of his freedom of opinion and expression.

29.

Mr. Hammouri’s work as a human rights defender and lawyer consists of openly

holding and expressing opinions intended to call for accountability and protect human rights.

In the absence of evidence that he poses a genuine security threat, Mr. Hammouri’s views

should be seen as the cause of his arrest and detention. The source claims that Israel

frequently arrests Palestinian activists such as Mr. Hammouri for simply waving a Palestinian

flag, attending a peaceful protest or even just speaking out.

30.

In addition, the source argues that, because Mr. Hammouri was a lawyer and activist

with a non-governmental organization at the time of his arrest and given the lack of evidence

and charges against him, the detention should also be seen as resulting from his exercise of

freedom of association. Mr. Hammouri is a lawyer and field researcher for a human rights

organization that was criminalized by Israel in 2021, which designated it a “terrorist

6 Opinion 58/2018 paras. 44 and 45.

7 Opinion 47/2018, paras. 65–69.

8 General comment No. 34 (2011), para. 9.

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organization”.9 The source claims that Mr. Hammouri’s detention is a continuation of the

policies of Israel to restrict Palestinians’ rights to freedom of association.

31.

Moreover, the source alleges that the detention of Mr. Hammouri is also in violation

of his right to equal protection of the law and therefore is arbitrary under category II, as it

stems, in part, from his identity as a Palestinian and as a human rights defender. Equal

protection entails not only an examination of the laws, but also whether there exists

“discrimination in fact”. Discrimination in fact is part of daily life for Palestinian Arabs in

Israel, East Jerusalem and the occupied West Bank. Reportedly, Israel maintains a system

under which Palestinians, like Mr. Hammouri, do not, in practice, enjoy the same rights to

hold and express opinions and exercise their freedom of association as Jewish Israelis.

32.

Furthermore, the source claims that the detention of Mr. Hammouri by Israel should

be seen as related to his work as a human rights defender. Detaining individuals such as Mr.

Hammouri on the basis of their activities as human rights defenders violates their right to

equal protection of the law. While there is no specific definition of human rights defender in

international law, the Declaration on the Right and Responsibility of Individuals, Groups and

Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms discusses individuals contributing to the effective elimination of all

violations of human rights and fundamental freedoms of peoples and individuals. Mr.

Hammouri is one of these individuals because, as a lawyer, he is actively engaged in

advocating for the human rights of Palestinians. The arrest of Mr. Hammouri, a human rights

defender who serves as a lawyer for a non-governmental and human rights organization, is

allegedly a continuation of attacks by Israel on Palestinian human rights defenders.

33.

The source therefore alleges that Mr. Hammouri’s detention is arbitrary under

category II because it was caused by the exercise of his rights to freedom of opinion,

expression and association and, as a human rights defender and Palestinian, it violates his

right to equal protection under the law.

Category III

34.

Detention is arbitrary when the total or partial non-observance of the international

norms relating to the right to a fair trial, established in the Universal Declaration of Human

Rights and in the relevant international instruments accepted by the States concerned, is of

such gravity as to give the deprivation of liberty an arbitrary character.

35.

According to the source, because Mr. Hammouri has joined the collective boycott of

military courts (which should only be used to try military personnel for military offences),10

the confirmation of his detention order was conducted without his presence. However, Israeli

law, the extensive practice of military courts, his own experience,11 and the observations of

the Working Group allegedly demonstrate that, had Mr. Hammouri been present and should

he have submitted to the process of the military courts, he would not have been afforded the

fair trial guarantees under the Covenant and the Universal Declaration that are relevant to

category III.

36.

Reportedly, Mr. Hammouri’s current and past detentions, as well as the revocation of

his residency, have all been based on “secret evidence”. As neither Mr. Hammouri nor his

lawyer has access to any of the evidence against him, he is unable to mount any sort of

meaningful defence, in contravention of article 11 of the Universal Declaration of Human

Rights. The source claims that established Israeli practice demonstrates that, were Mr.

Hammouri to appear before a military court, he would be denied: the opportunity to be tried

without undue delay, the right to be informed of the reasons for his detention, the opportunity

to present a meaningful defence, the right to be presumed innocent until proven guilty, the

right to be tried in front of an independent and impartial tribunal and the right to be treated

equally before the law.

9 United Nations, “Outraged over Israel’s designation of six civil society groups as terrorists, speakers

tell Palestinian rights committee harassment against human rights defenders must end”, 7 December

2021.

10 A/HRC/28/32, para. 57.

11 Opinion No. 34/2018.

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Category V

37.

Deprivation of liberty is arbitrary under category V when it constitutes a violation of

international law based on discrimination on the basis of birth, national, ethnic or social

origin, language, religion, economic condition, political or other opinion, gender, sexual

orientation, disability or any other status that aims towards or can result in ignoring the

equality of human beings.

38.

The source claims that the detention of Mr. Hammouri by Israel meets the definition

of arbitrary detention under category V, because it is a form of discrimination on the basis of

his national, ethnic or social origin as a Palestinian.12 Administrative detention on the basis

of Military Order No. 1651 is particularly directed against Palestinians.13 Throughout the

occupation of the West Bank by Israel, only a small number of Jewish Israelis have ever been

held in administrative detention. Mr. Hammouri, a Palestinian lawyer, field researcher and

human rights defender, has allegedly been detained or imprisoned by Israel six times and has

been subjected to other forms of harassment.

39.

The Human Rights Committee has expressed concern about the continuing practice

of administrative detention of Palestinians14 and the equal treatment for all persons within the

territory of Israel and subject to its jurisdiction, regardless of their national or ethnic origin.15

The Committee on the Elimination of Racial Discrimination has urged Israel to end its current

practice of administrative detention, which is discriminatory and constitutes arbitrary

detention under international human rights law.16 The Committee on the Elimination of

Racial Discrimination has also expressed concern about the existence in the Occupied

Palestinian Territory of two entirely separate legal systems and sets of institutions for Jewish

communities in illegal settlements, on the one hand, and Palestinian populations living in

Palestinian towns and villages, on the other hand.17 The use of administrative detention by

Israel forms a key part of the separate legal systems that are applied to Palestinian human

rights defenders, such as Mr. Hammouri, on the basis of national origin. The source claims

that this double standard has led to the conclusion that the practices and policies of Israel in

the occupied West Bank, including its use of administrative detention, constitute a violation

of the prohibition of apartheid.

40.

Mr. Hammouri’s status as a human rights defender raises further concerns under

category V, as human rights defenders are a protected group entitled to equal protection of

the law under article 26 of the Covenant.18 Mr. Hammouri is a human rights defender because

he is an individual contributing to the effective elimination of all violations of human rights

and fundamental freedoms of peoples and individuals.19 Mr. Hammouri contributes through

advocacy work as a lawyer and field researcher for a human rights organization.

41.

The source states that, by attacking human rights defenders, such as Mr. Hammouri,

as it has done so in the past and in conjunction with the recent criminalization of Palestinian

human rights organizations, Israel is allegedly attempting to silence those speaking out

against its violations of human rights.

42.

Therefore, the source claims that the detention of Mr. Hammouri by Israel constitutes

an arbitrary deprivation of liberty that is discriminatory on the basis of his national origin,

falling under category V.

12 Opinion No. 34/2018, paras. 43 and 44.

13 Opinion No. 31/2017, para. 35.

14 CCPR/C/ISR/CO/4, para. 10.

15 Ibid., para. 7.

16 CERD/C/ISR/CO/14-16, para. 27.

17 CERD/C/ISR/CO/17-19, para. 22.

18 A/HRC/48/55, para. 48.

19 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society

to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,

fourth preambular paragraph.

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Discussion

43.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

44.

In determining whether Mr. Hammouri’s detention was arbitrary, the Working Group

has regard to the principles established in its jurisprudence to deal with evidentiary issues. If

the source has established a prima facie case for breach of international requirements

constituting arbitrary detention, the burden of proof should be understood to rest upon the

Government if it wishes to refute the allegations.20 In the present case, the Government has

chosen not to challenge the prima facie credible allegations made by the source.

45.

The Working Group notes that Mr. Hammouri was released upon deportation to

France on 18 December 2022. However, the Working Group notes that, in accordance with

its methods of work (para. 17 (a)), it reserves the right to render an opinion, on a case-by-

case basis, whether or not the deprivation of liberty was arbitrary, notwithstanding the release

of the person concerned. In the present case, the Working Group opines that the allegations

made by the source are serious and notes that the case of Mr. Hammouri is ongoing and that

it has received no information regarding the conditions of his release. Therefore, the Working

Group shall proceed to deliver the opinion.

Category I

46.

The source alleges that, when Israeli forces detained Mr. Hammouri on 7 March 2022,

they did not inform him of the reason for his arrest or present him with a warrant. They

confiscated his three mobile phones and laptop, without presenting a warrant, and then

transported him between multiple interrogation and detention facilities. At no point during

these processes did the authorities present him with a warrant for his arrest. The Government

has not responded to these allegations.

47.

Article 9 (2) of the Covenant provides that anyone who is arrested shall be informed,

at the time of arrest, of the reasons for his or her arrest and shall be promptly informed of any

charges against him or her. The Working Group has previously stated that, for a deprivation

of liberty to have a legal basis, it is not sufficient that there is a law that may authorize the

arrest. The authorities must invoke that legal basis and apply it to the circumstances of the

case. 21 This is typically 22 done through an arrest warrant or arrest order (or equivalent

document).23 The reasons for arrest must be provided immediately upon arrest and must

include not only the general legal basis of the arrest, but also enough factual specifics to

indicate the substance of the complaint, such as the wrongful act and the identity of an alleged

victim.24

48.

According to the source’s unrefuted allegations, Mr. Hammouri was not provided with

reasons for his arrest on 7 March 2022 when he was detained, nor during his initial transfers

between detention locations. He refers to an administrative detention order issued against

him three days after his arrest, but notes that this was based on secret information. The source

has provided a credible account that has not been disputed by the Government, which has not

provided any reason for failing to inform Mr. Hammouri of the reasons for his arrest. On this

basis, the Working Group finds that he was not sufficiently informed of the reasons for his

arrest in a prompt manner as required under article 9 (2) of the Covenant.

49.

The source submits that, following his arrest, on 10 March 2022, an Israeli military

commander in the West Bank issued an administrative detention order against Mr.

Hammouri, without charges or trial. The source notes that, under section 285 of Military

Order No. 1651, a commander of the Israel Defense Forces is reportedly allowed to issue an

administrative detention order for an individual if the commander has reasonable grounds to

20 A/HRC/19/57, para. 68.

21 In cases of flagrante delicto, the opportunity to obtain a warrant will not be typically available.

22 Human Rights Committee, general comment No. 35 (2014), paras. 21–23. See also opinions No.

88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.

23 Human Rights Committee, general comment No. 35 (2014), paras. 21–23; and opinion No. 30/2017,

paras. 58 and 59.

24 Opinion No. 85/2021, para. 69.

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believe that the individual poses a threat to regional security. The Government has not

responded to these allegations.

50.

In its previous opinion concerning Mr. Hammouri, the Working Group noted that he

was then subjected to administrative detention on the basis of Military Order No. 1651 (at

first under a different article, namely article 31 (detention for interrogation), but also without

charge or trial). That was found to be a violation of article 9 of the Covenant and for this

reason arbitrary under category I. His arrest on 7 March 2022 under the same law again brings

into question whether it violates article 9 (1) of the Covenant, pursuant to which no one

should be deprived of liberty except on such grounds and in accordance with such procedure

as are established by law.

51.

The Working Group has already stated its agreement25 with the views expressed by

the Human Rights Committee, in its general comment No. 35 (2014) on liberty and security

of person, that any administrative detention presents severe risks of arbitrary deprivation of

liberty and would normally amount to arbitrary detention, as other effective measures

addressing the threat, including the criminal justice system, would be available. Such

administrative detention must therefore be restricted to the most exceptional circumstances

and, as the Human Rights Committee has pointed out in paragraph 15 of that general

comment, if, under the most exceptional circumstances, a present, direct and imperative

threat is invoked to justify the detention of persons considered to present such a threat, the

burden of proof lies on States parties to show that the individual poses such a threat and that

it cannot be addressed by alternative measures, and that burden increases with the length of

the detention.

52.

The Human Rights Committee recommended that Israel end the practice of

administrative detention and the use of secret evidence in administrative detention

proceedings and ensure that individuals subject to administrative detention orders were either

charged promptly with a criminal offence or released.26

53.

In the present case, the Working Group observes that Mr. Hammouri was held in

administrative detention for approximately nine months from 7 March 2022 until 18

December 2022. The Government has had an opportunity but has failed to inform the

Working Group as to what present, direct and imperative threat Mr. Hammouri posed at the

time of his arrest and how this threat has persisted during his detention for several months.

That is an imperative requirement to ensure compliance with article 9 of the Covenant and

ensure the legality of such administrative detention. The Working Group must therefore

conclude that this threat does not exist and the arrest and subsequent detention of Mr.

Hammouri therefore lacks a legal basis, is contrary to article 9 (1) of the Covenant and is

consequently arbitrary under category I.

54.

The source alleges that neither he nor his lawyer has been unable to challenge his

detention because they have not had access to the evidence on which his detention is based,

as it is classified as secret. He alleges that this undermines his ability to exercise his rights

under the Covenant. This allegation stands unchallenged by the Government.

55.

Article 9 (4) of the Covenant states that anyone who is deprived of liberty by arrest or

detention shall be entitled to take proceedings before a court, in order that that court may

decide without delay on the lawfulness of the detention and order the individual’s release if

the detention is not lawful. The right to challenge the lawfulness of detention before a court

is a self-standing human right, which is essential to preserve legality in a democratic society.27

That right, which is, in fact, a peremptory norm of international law, applies to all forms of

deprivation of liberty, and to all situations of deprivation of liberty, including not only

detention for purposes of criminal proceedings, but also situations of detention under

administrative and other fields of law.28 It also applies irrespective of the place of detention

25 Opinions No. 44/2017, para. 29; and No. 86/2017, para. 31.

26 CCPR/C/ISR/CO/4, para. 10.

27 A/HRC/30/37, paras. 2 and 3.

28 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, para. 47 (a).

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or the legal terminology used in the legislation. Any form of deprivation of liberty on any

ground must be subject to effective oversight and control by the judiciary.29

56.

The source’s unrefuted submissions show that, although Mr. Hammouri appeared

before a military court by video conference on 9 March 2022, neither he nor his lawyer had

access to any of the evidence against him. The Working Group considers that, in these

circumstances, he was not afforded a meaningful opportunity to challenge the basis for his

arrest. This constitutes a violation of article 9 (4) of the Covenant. The Working Group

therefore concludes that the detention of Mr. Hammouri was arbitrary, falling within category

I.

57.

Moreover, in light of the facts above, the Working Group once again notes30 the

continuing long-term state of emergency existing in Israel. In that connection, it recalls the

concluding observations of the Human Rights Committee on the fourth periodic report of

Israel, in 2014, in which the Committee reiterated its concern at the ongoing state of

emergency in Israel and reminded the Government that state-of-emergency measures must

be of an exceptional and temporary nature and limited to the extent strictly required.31 The

Committee also made the same recommendation to Israel during the previous reporting cycle,

in 2010.32

Category II

58.

According to the allegations from the source, Mr. Hammouri has been targeted due to

his advocacy calling for the end of the military occupation of the West Bank by Israel. The

source argues that, in the absence of any evidence that Mr. Hammouri poses a genuine threat

to the security of the region, his arrest and detention should be seen as based upon his exercise

of his freedom of opinion, expression and, as a lawyer, association. The detention of Mr.

Hammouri is therefore claimed to be arbitrary under category II. The Government has not

responded to these allegations.

59.

The Working Group states that freedom of opinion and expression and of peaceful

association are fundamental human rights, enshrined in articles 19 and 20 of the Universal

Declaration of Human Rights and articles 19 and 22 of the Covenant. The Government must

respect, protect and fulfil the right to hold and express opinions, including those that are not

in accordance with its official policy, as well as the right to think and manifest personal

convictions that can be at odds with its official ideology.33 The Working Group notes that,

under article 6 of the Declaration on the Right and Responsibility of Individuals, Groups and

Organs of Society to Promote and Protect Universally Recognized Human Rights and

Fundamental Freedoms, human rights defenders have the right to study, discuss, form and

hold opinions on the observance, both in law and in practice, of all human rights and

fundamental freedoms and, through those and other appropriate means, to draw public

attention to those matters.34 The Working Group reaffirms that the work of human rights

defenders is fundamental to the strengthening of democracy.35 The Human Rights Committee

has singled out harassment, intimidation or stigmatization of a person, including arrest,

detention, trial or imprisonment for reasons of the opinions that individuals may hold, as a

violation of article 19 of the Covenant.36

60.

The source’s unrefuted arguments posit that Mr. Hammouri is a human rights defender

whose work consists of openly holding and expressing opinions intended to call for

accountability and to protect human rights. The Working Group is satisfied that Mr.

Hammouri’s views were the cause of his arrest and detention and that he was detained for

the exercise of his rights.

29 Ibid., para. 47 (b).

30 Opinions No. 44/2017, para. 31; No. 86/2017, para. 40; and No. 34/2018, para. 39.

31 CCPR/C/ISR/CO/4, para. 10.

32 CCPR/C/ISR/CO/3, para. 7.

33 Opinion No. 81/2021, para. 89.

34 Opinion No. 80/2021, para. 103.

35 Opinion No. 85/2020, para. 76.

36 Human Rights Committee, general comment No. 34 (2011), para. 9.

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61.

The Working Group notes that, according to article 19 (3) of the Covenant, any

restriction imposed on the right to freedom of expression must satisfy three requirements,

namely, the restriction must be provided by law, be designed to achieve a legitimate aim and

meet the requirements of necessity and proportionality. 37 There is no indication in the

materials provided to suggest that Mr. Hammouri was arrested due to his involvement in

violence of any type. Accordingly, his detention was a violation of his rights under article 19

of the Covenant.

62.

The source argues that, because Mr. Hammouri was a lawyer and activist with a non-

governmental organization at the time of his arrest and given the lack of evidence and charges

against him, the detention should also be seen as resulting from his exercise of freedom of

association. Mr. Hammouri is a lawyer and field researcher for a human rights organization

that was criminalized by Israel in 2021, which designated it a “terrorist organization”. In this

respect, the source claims that Mr. Hammouri’s detention is a continuation of the policies of

Israel to restrict Palestinians’ rights to freedom of association, violating article 22 (1) of the

Covenant, which guarantees the right to freedom of association with others. The Government

has provided no indication that Mr. Hammouri’s detention is based on his violent behaviour,

threatening public security or order.

63.

Article 22 of the Covenant states that everyone should have the right to freedom of

association with others, including the right to form and join trade unions for the protection of

his or her interests. It also states the importance of the protection of this right for democratic

society. The Working Group points out that, according to the Declaration on the Right and

Responsibility of Individuals, Groups and Organs of Society to Promote and Protect

Universally Recognized Human Rights and Fundamental Freedoms, everyone has the right,

individually and in association with others, to promote and to strive for the protection and

realization of human rights, and to draw public attention to the observance of human rights.38

64.

The Working Group is satisfied, based on the unopposed allegations in the source’s

communication, that Mr. Hammouri’s detention is arbitrary under category II, because it was

caused by his exercise of his rights to freedom of opinion, expression and association and, as

a human rights defender and Palestinian, it violates his right to equal protection under the

law.

65.

According to the discussion above, the Working Group considers that the detention

of Mr. Hammouri is because of the exercise of rights defined in articles 19 and 20 of the

Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant and is

arbitrary under category II.

Category III

66.

The source claims that the military court judgment of 14 March 2022 was made

without a hearing or an opportunity to present a defence and as such violates article 14 (3)

(d) of the Covenant. The source also claims that the “secret evidence” relied upon in court

was not disclosed, thus violating article 14 (3) (b) of the Covenant. As with the other

categories, the Government has not responded to these allegations.

67.

Under category III, detention becomes arbitrary when the total or partial non-

observance of the international norms relating to the right to a fair trial, established in the

Universal Declaration of Human Rights and in the relevant international human rights

standards, is of such gravity as to give the deprivation of liberty an arbitrary character.39

Article 11 (1) of the Universal Declaration of Human Rights states that persons charged with

a criminal offence should be sentenced in a public trial at which they have had all the

guarantees necessary for their defence. Article 14 of the Covenant also guarantees the right

to fair trial, as discussed in detail below. In the context of administrative detention, as is the

situation in the present case, these fair trial guarantees are important in relation to the hearings

regarding Mr. Hammouri’s detention, including on 14 March 2022.

37 Opinion No. 80/2021, para. 106.

38 Articles 1 and 6 (c). See also General Assembly resolution 74/146, para. 12; and opinion No.

85/2020, para. 84.

39 A/HRC/36/38, para. 8 (c).

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68.

The source claims that the military court judgment on 14 March 2022 was made

without a hearing or an opportunity for Mr. Hammouri or his lawyer to present a defence.

Article 14 (3) (d) of the Covenant guarantees that all persons charged with a criminal offence

should have the right to be tried in their presence and to defend themselves in person or

through legal assistance of their own choosing. According to the Human Rights Committee,

proceedings in the absence of the accused is permissible in the interest of the proper

administration of justice, that is when accused persons, although informed of the proceedings

sufficiently in advance, decline to exercise their right to be present.40 The Working Group

considers that sentencing without the presence of those accused or their lawyers violates

article 14 (3) (d) of the Covenant.

69.

According to the source, the decisions on detention were made based on secret

evidence, which was not disclosed to Mr. Hammouri or his lawyer. Article 14 (3) (b) of the

Covenant guarantees adequate facilities for preparation of a defence. The Human Rights

Committee considers that this guarantee includes access to documents and other evidence,41

stating that this access must include all materials that the prosecution plans to offer in court

against the accused or that are exculpatory.42 The Working Group also considers that facilities

must include access to documents and other evidence that those accused require to prepare

their cases.43 Article 14 (3) (e) of the Covenant allows those accused to examine or have

examined witnesses against them.

70.

The Working Group considers that the source has established the allegations regarding

the misuse of secret evidence. It finds that the lack of access to the evidence effectively

deprived Mr. Hammouri of his right to legal representation, to prepare his defence and of his

right to examine the witnesses against him, in violation of article 14 (3) (b), (d) and (e).

71.

The Working Group has noted its concerns regarding the use of military courts to

judge civilians on a number of occasions.44 It is of the view that military tribunals are often

used to deal with political opposition groups, journalists and human rights defenders45 and,

as a general rule, military tribunals should only be competent to try military personnel for

military offences.46 Similarly, the Human Rights Committee has concluded that trials of

civilians by military or special courts should be exceptional, that is limited to cases in which

the State party can show that resorting to such trials is necessary and justified by objective

and serious reasons and in which, with regard to the specific class of individuals and offences

at issue, the regular civilian courts are unable to undertake the trials.47

72.

In the absence of an explanation from the Government, the Working Group considers

that the trial of Mr. Hammouri, who is a civilian, by a military tribunal was unjustified. The

Working Group notes that no exceptional circumstances have been provided indicating why

the Government considered that Mr. Hammouri could be tried by a military tribunal.

73.

Considering the above conditions, the Working Group considers that the use of

military court proceedings, the lack of access to the evidence and Mr. Hammouri’s absence

from the court violate article 14 (3) of the Covenant and collectively amount to serious

violations. Hence, the Working Group concludes that the detention of Mr. Hammouri is

arbitrary under category III.

Category V

74.

The source claims that the detention of Mr. Hammouri by Israel meets the definition

of arbitrary detention under category V, because it is a form of discrimination on the basis of

his national, ethnic or social origin as a Palestinian. 48 The source also alleges that the

40 Human Rights Committee, general comment No. 32 (2007), para. 36.

41 Ibid., para. 33.

42 Ibid.

43 Opinion No. 83/2021, para. 43. See also opinion No. 4/2022.

44 A/HRC/27/48, paras. 66–70 and the citations therein.

45 Ibid., para. 66.

46 Ibid., para. 69.

47 Human Rights Committee, general comment No. 32 (2007), para. 22.

48 Opinion No. 34/2018, paras. 43 and 44.

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detention of Mr. Hammouri stems, in part, from his identity as a Palestinian human rights

defender. Again, the Government has not responded to these allegations.

75.

The Working Group has determined that detaining individuals on the basis of their

national origin or activities as human rights defenders is a violation of their right to equality

before the law and to the equal protection of the law under article 7 of the Universal

Declaration of Human Rights and article 26 of the Covenant.49

76.

Administrative detention on the basis of Military Order No. 1651 has a particularly

severe impact on Palestinians.50 Throughout the occupation of the West Bank by Israel, the

vast majority of persons held in administrative detention have been Palestinians and/or

defenders of Palestinians’ human rights. Mr. Hammouri, a Palestinian lawyer, field

researcher and human rights defender, has allegedly been detained or imprisoned by Israel

six times and has been subjected to other forms of harassment.

77.

The Working Group notes the growing volume of its own jurisprudence concerning

administrative detention of Palestinians in Israel and observes that the present case follows

the same pattern. In the absence of any explanation from the Government, the Working Group

takes note of the pattern that has emerged through the number of cases that have been brought

before it in the past with similar facts,51 noting the general manner in which the administrative

detention orders in those cases were used against Palestinians in particular, as highlighted by

the Human Rights Committee 52 and the Committee on the Elimination of Racial

Discrimination. 53 The Working Group concludes that the arrest and detention of Mr.

Hammouri, who is a Palestinian, violates articles 2 (1) and 26 of the Covenant on the grounds

of discrimination based on national origin, is arbitrary and falls under category V.

Additional remarks

78.

The Working Group notes with concern Mr. Hammouri’s deportation to France. It

considers that this removal may further exacerbate Mr. Hammouri’s ability to conduct his

human rights advocacy for Palestinians. The Working Group reminds Israel of its obligations

to act in accordance with its duties under international law and to properly remedy the

violations that caused Mr. Hammouri’s detention to be arbitrary, as detailed above.

Disposition

79.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Salah Hammouri, being in contravention of articles 9,

10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 2 (1), 9,

14, 19, 21 and 22 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I, II, III and V.

80.

The Working Group requests the Government of Israel to take the steps necessary to

remedy the situation of Mr. Hammouri without delay and bring it into conformity with the

relevant international norms, including those set out in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights.

81.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to accord him an enforceable right to compensation

and other reparations, in accordance with international law.

82.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Hammouri and to take appropriate measures against those responsible for the violation of his

rights.

49 Opinion No. 85/2020, para. 84.

50 Opinion No. 31/2017, para. 35.

51 See opinions No. 13/2016, No. 24/2016, No. 3/2017, No. 44/2017, No. 86/2017 and No. 34/2018.

52 CCPR/C/ISR/CO/4, para. 10.

53 CERD/C/ISR/CO/14-16, para. 27.

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83.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the situation of human rights in the Palestinian

territories occupied since 1967, for appropriate action.

84.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

85.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether compensation or other reparations have been made to Mr. Hammouri;

(b)

Whether an investigation has been conducted into the violation of Mr.

Hammouri’s rights and, if so, the outcome of the investigation;

(c)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Israel with its international obligations in line with the

present opinion;

(d)

Whether any other action has been taken to implement the present opinion.

86.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

87.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

88.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.54

[Adopted on 29 March 2023]

54 Human Rights Council resolution 51/8, paras. 6 and 9.